sexual harassment

Governor Jerry Brown signed Assembly Bill 2770 by Assemblywoman Jacqui Irwin into law as Chapter 82 of the Statutes of 2018 on July 9, 2018. The bill’s provisions specifically amended Section 47 of California’s Civil Code and went in to effect on January 1st of this year.

AB 2770 created a limited privilege for employer communications of sexual harassment claims against former employees. AB 2770 amends Civil Code Section 47(c) in two explicit clauses. First it adds a sentence that the particular subdivision applies to and includes a complaint of sexual harassment by an employee without malice to an employer based upon credible evidence and communications between the employer and interested persons, also without malice, regarding a complaint of sexual harassment.

The second clause is that AB 2770 amends the existing law to state that this particular subdivision authorizes a current or former employer, or that employer’s agent, to answer without malice whether or not the employer would rehire a current or former employee and whether that decision to not rehire is based upon the employer’s determination that the former employee engaged in sexual harassment.

Now in explaining this bill to members of the Legislature the Senate Floor Analysis said, “This bill would allow former employers to inform potential employers about whether a decision to terminate or not rehire an individual is based upon the employer’s determination that the former employee engaged in sexual harassment. This bill does not provide an absolute privilege to these types of communications, but a conditional privilege whereby the statements made by the former employers cannot be made with malice.”

This bill was sponsored by the California Chamber of Commerce and in support, the Cal Chamber and some 35 supportive groups wrote that, “AB 2770 codifies case law to ensure victims of sexual harassment and employers are not sued for defamation by the alleged harasser when a complaint of sexual harassment is made and that California’s public policy protects employees from harassment and AB 2770 furthers this particular public interest.”

By: Trisha Mannie

After the launch of #MeToo and revelations of many allegations of sexual harassment and assault against Hollywood producer Harvey Weinstein became public, the media’s coverage of how common sexual harassment is in the workplace has become more prevalent. Famous women are sharing their experiences and using their status to encourage other women to do the same, resulting in a drastic rise in awareness of the pervasiveness of sexual harassment. The #MeToo and We Said Enough movements are only a couple of examples of how society is taking a stand to deter sexual harassment in the workplace. Now, more than ever, there is mounting pressure to put a halt to the somewhat normalized behaviors of sexual harassment occurring in the workplace that have hindered the success of many women’s careers for years.

SB 224 represents California’s goal to end sexual harassment in the workplace. SB 224 acts to emphasize that those in powerful positions are liable for their actions by adding investors, producers, directors, lobbyists, and elected officials into legislation as examples of professional relationships where sexual harassment should not occur. This recognition of a broader scope of potentially liable professionals extends to include professional relationships that do not yet exist, but are offered. Additionally, SB 224 removes the requirement that the victim must prove the relationship was not able to be easily terminated before the harasser can be held liable for his or her actions. Lastly, SB 224 revises two Governmental Codes allowing the Department of Fair Employment and Housing (DFEH) to investigate cases of sexual harassment.

Through these changes, there is indication of a greater awareness for sexual harassment and a clear declaration that victims of these situations are supported by the law. It promotes the eradication of professional behaviors of sexual harassment dictated by money, status, and power that have manipulated the vulnerable as they fear for their jobs. It removes blame from the victim by acknowledging that it is not up to the victim to terminate the relationship, but that the sexually harassing behavior should not have occurred in the first place. SB 224 makes it clear that victims are not alone as the DFEH plays a role, alongside the individual, in seeking justice. The enactment of SB 224 unambiguously promulgates that those within professional relationships are entitled to respect, while reinforcing that those who violate this right should be held liable.

With its progressive ideals and underlying aim of achieving equality, SB 224 has faced no opposition. It passed in both the Senate and the Assembly and on September 30th, SB 224 was approved by Governor Brown. SB 224 is one step towards achieving the bigger picture of ending sexual harassment across multiple industries.

To learn more about SB 224, listen to my interview on “In Session,” a podcast from the University of the Pacific Law Review.

Trisha Mannie is a staff writer for the University of the Pacific Law Review and law student student at McGeorge School of Law in Sacramento.

CALCASA and The Partnership are working together to get a funding increase from California’s state budget that would allow crisis centers across California to put more preventative policies and measures into action. These new preventative programs would be in addition to the emergency services that they already provide. If that team up of two coalitions sounds like a lobbying coalition to you, you probably read Chris Micheli’s piece earlier this week on utilizing successful lobbying coalitions, which is also featured in today’s episode.

I hope you enjoy today’s podcast. As always, you can find the show on iTunes, Apple Podcasts, and Stitcher Radio. If you enjoyed today’s show, please leave us a 5-star review on iTunes and Apple Podcasts while you’re there. Doing so will help other people find The CAP⋅impact Podcast more easily.

And again, if you want to find the report by the California Coalition Against Sexual Assault that John and I discussed – The Cost and Consequences of Sexual Violence in California – you can find the full report here.

The big news from late last week, and last weekend, was State Senator Tony Mendoza’s (D- Artesia) resignation from the California Legislature moments before the State Senate was going to vote on whether or not to expel him. His fiery resignation letter hinted that he was not ruling out running for re-election to the position he was resigning from. Over the weekend at the California Democratic Party’s convention, Mendoza made it clear that he is running for re-election.

There is nothing in the Joint Rules of the Senate and the Assembly, Senate Rules, or the California Constitution that prevents Mendoza from doing so after resigning. Actually, had Senator Mendoza been expelled, there is still nothing that prevents him from running for re-election. And should he win re-election, there is nothing in the California Constitution, Senate Rules, or Joint Rules that allows the California Senate to not seat him. Considering Mendoza’s current lawsuit against the Senate, it would not be surprising if he were to sue again should the Senate take actions to remove him from that body.

Something clearly needs to be done. As part of the California Legislature’s overall effort to clean house and make the building a safer work environment for staffers there should be something in place – rule, law, or otherwise – that prevents those who resign, or at the very least are expelled, due to sexual harassment from returning to the Legislature. This current gap in rules and law that allows lawmakers who have resigned or been expelled over sexual harassment to return to office is a glaring hole in the protections for staffers.

The bill introduction deadline for 2018 was 1½ weeks ago, but there are a few options legislative options the Legislature could pursue – gutting and amending a bill, or introducing a committee bill among – for there to be a legislative fix this year. Even then, the new legislation would need to have an urgency clause added to it – making the bill effective immediately upon the Governor’s signature, but requiring a 2/3 vote in each house to pass – for it to prevent Mendoza from taking a seat in the State Senate. Without the urgency clause, the new law would go into effect in January of 2019; after Mendoza would have taken his seat in the Senate should he win re-election. But in the likely case that the sexual harassment allegations against Mendoza become a campaign issue, and he still gets re-elected, the law could be challenged in court on the basis that voters knew about the allegations and his resignation, and elected him anyways.

If the California Legislature truly wants to address this issue, it could put a constitutional amendment on the ballot and have the voters decide on whether or not a member of the Legislature who resigned or was expelled from their position can be allowed to be re-elected to a position in the Legislature. Constitutional amendments, unlike bills, are not beholden to legislative deadlines and can be introduced in the Legislature at any time. That constitutional amendment could be on the ballot come November. And a statewide vote on the amendment, were it to pass, would counter the voter argument Mendoza could use against a change in statute that I mentioned earlier.

However, as was shown recently with Prop 8, even constitutional amendments that are passed by California’s voters can be challenged and taken to the California Supreme Court. But for this to go that far, it will come down to appetite of Mendoza, and/or some other Senators to be named, to continue the fight to that point.

Why does the law make employers pay for bad acts by their employees? One reason is that employers direct and control their employees’ actions, making them partially responsible for employee actions within their job’s scope. When employers have to pay out money for employees’ bad behavior they should be motivated to make the appropriate changes.

Another reason is that the purpose of civil damages judgments is to compensate victims – not punish perpetrators. Employers are in a better position to buy insurance or accumulate enough funds to pay for injuries.

What about employees who’ve engaged in egregious behavior? Shouldn’t they be punished by paying? In civil suits, juries may award punitive damages to punish an employee who’s found to have acted in a way that’s more blameworthy than workplace negligence or misconduct (acting with oppression, fraud, or malice); generally the employee, rather than the employer, pays. If the employee’s conduct is criminal, then they may be charged and, if convicted, punished with fines or imprisonment.

Additionally, and importantly, another consideration is the impact that an “employee pays” rule would have on state employees doing their jobs, interacting with other employees and members of the public every day. We want to deter bad behavior but we don’t want to “over-deter” it with a rule that makes employees frightened to act because if they – maybe – cross a line, or someone claims they did, they’ll be paying for a lawyer and a judgment, if it comes in. UCLA Law School Professor Johanna C. Schwartz, who conducted the aforementioned study of police department payouts, concludes that in most instances the departments, rather than the officers, should pay for misconduct claims because requiring officers to pay would result in this type of over-deterrence. She recommends transparency of payouts, and making the departments pay from their budgets rather than charging the taxpayers from the general fund..

Another note on “over-deterrence” comes from the Constitution. The Constitution provides the President absolute immunity from lawsuits for damages arising from his actions as President. These lawsuits include claims by an employee of sexual harassment. The Supreme Court has also interpreted the Constitution to give different levels of immunity to different types of government officials. In doing so, the Court explains the Constitution creates “breathing room” around the actions of government officials, shielding them from paying damages even when conduct violates the law:

Public officials, whether governors, mayors or police, legislators or judges, who fail to make decisions when they are needed or who do not act to implement decisions when they are made do not fully and faithfully perform the duties of their offices. Implicit in the idea that officials have some immunity— absolute or qualified —for their acts, is a recognition that they may err. The concept of immunity assumes this and goes on to assume that it is better to risk some error and possible injury from such error than not to decide or act at all.”

Most state employees are not government officials entitled to constitutional immunity. Even state government officials entitled to immunity may lose it if their actions violate clearly established law. Nevertheless, the over-deterrence concern runs through legal and policy judgments about who should pay for employee misconduct and explains why often, when the employer is the state, the taxpayers pay.

Today’s conversation is related to last week’s chat that I had with Erin about The Partnership’s effort to double funding for domestic violence, which would allow for more prevention efforts in California. It’s also a follow up to the conversation we had a while back with Beth Hassett, the CEO and Executive Director of WEAVE, and the work that they do with coalitions, including The Partnership. We talked, in a broad sense, about the work The Partnership does to achieve its vision of “a California free of domestic violence.”

In addition to the coalition work that The Partnership does with its members all across California, they lean on and assist other ally organizations that don’t necessarily work on domestic violence issues but do work on issues that overlap with domestic violence like sexual assault, immigration, employment law, economic security, and many other issues. When thinking about useful tools to change public policy with, a brain trust of other experts that know the issues that overlap with yours inside and out is a very good tool to have.

The other thing that stands out to me about how The Partnership works is that their approach to public policy is designed to minimize unintended negative consequences of policies aimed at eradicating domestic violence. The process by which The Partnership does this is by pulling in input from their members all over California, which helps ensure that its policy decisions don’t inadvertently hurt some of its members. Erin said it better than I did,

One of the great things about that amount of input is … my agency is in Oakland, and something that might be very beneficial to my agency in Oakland might have a negative impact in a rural area that I might not think of if it was just me on the phone giving that input to The Partnership.”

It’s this balancing act that The Partnership pulls off – balancing the need and conditions of its member agencies and the domestic violence survivors that they serve – between the urban and rural parts of the state that I find special.

As I’ve discussed before, the #MeToo and We Said Enough movements are starting to bring change to the California legislature’s persistent culture of sexual assault and harassment. That process of bringing change has been slow, perhaps too slow.

Furthering that concern are the reports about state Senator Tony Mendoza. He is under investigation for sexual harassment and misconduct and agreed earlier this month to take a paid leave of absence. However, after taking his leave, he has returned to the Capitol to work on legislation as well as attend and host events. He’s remained active in his district as well, posting pictures from a boat tour he hosted for high school seniors this past weekend. It needs to be noted that he has consistently denied the allegations against him. His actions – which fly in the face of the spirit of, if not the letter of, taking a leave of absence – are in line with these denials.

Mendoza’s actions led to current Senate President Pro Tem Kevin De León stating that Sen. Mendoza “does not have an understanding of the gravity of the situation with no decency and little respect for the institution.” My feeling is that statement driven as much by De León’s need to create space between the sexual harassment scandal that came to light while he was Pro Tem and the rest of his record in the California legislature if he wants to have any chance of being competitive in his campaign against incumbent U.S. Senator Dianne Feinstein as it is by outrage at Sen. Mendoza’s actions.

That leads me to an interesting report by Melanie Mason of the Los Angeles Times about local Democratic Party activists who are asking candidates “in explicit terms to divulge any history of sexual harassment.” This development could be a tipping point in changing the culture in the California Legislature and rooting out bad actors.

I’ve worked with candidates and shepherded them through the party endorsement process in the past. Questionnaires sent to candidates by local party clubs are the first, and sometimes the only, step in gaining that group’s endorsement. That endorsement means access to volunteers, it means potential campaign contributions, and it makes securing the party’s endorsement easier. When it comes to earning the party’s endorsement, these local club endorsements are beneficial because they send delegates to the party convention who are bound to vote for the candidate their club endorsed. By racking up club endorsements it becomes much easier to get the requisite number of votes at convention to receive the party endorsement. That’s the background to why these endorsements matter. The main reasons they matter are the access to volunteers that their endorsements bring, and more importantly, the potential access to money.

Campaigns run on volunteers. They are the foot soldiers who are out knocking on doors and calling voters. The more volunteers that a campaign has access to, the more voters it is able to directly contact. But these local clubs also collect membership dues and fundraise and can donate to candidates’ campaigns. Party endorsed candidates – and again, local endorsements help lead a state party endorsement – can receive contributions from the state party. More importantly, the state party can raise unlimited amounts of money, and through independent expenditure councils (I.E.’s), spend unlimited amounts of money. If sexual harassment becomes a line in the sand for local activists there is potential for incumbents who have sexual harassment in their history to lose support that they previously had. If that happens, volunteers go to other campaigns or stay home, money for direct mail or TV or radio ads dries up, and I.E.’s either disappear or fail to materialize.

All of that combines for a much harder reelection bid, and potentially, lead to a new wave of elected officials replacing an older crop of bad actors.

Recent action at the state, federal, and private corporate levels provides a window into the many ways to attack the problem of nondisclosure agreements in sexual harassment settlements.

Bar Nondisclosure Agreements in Settlements

A decade ago, the California Legislature changed the law to bar nondisclosure agreements in settlements of certain serious sexual abuse claims. The Legislature expanded it in 2016 to cover other types of claims with the passage of AB 1682. Now, Senator Connie M. Leyva (D-Chino) has announced her plan to introduce a bill to ban nondisclosure provisions in settlements of a broader list of sexual assault and harassment claims when the Legislature reconvenes in January. A similar bill is pending in the New York Legislature.

Remove Tax Deductibility of Payments if the Settlement Includes an NDA

In Congress’s new tax plan, there is a provision that takes away the business tax deduction for sexual harassment settlements that contain nondisclosure agreements. In the New York Times, University of Chicago Law School Professor Daniel Hemel called it “a nudge, not a hammer,” because most businesses will likely forego the deduction when forced to a choice. It is also important to note that while the new provision impacts businesses, it does not affect government entities, such as the California Legislature.

Bar Mandatory Arbitration of Sexual Harassment Claims

Employers’ use of mandatory arbitration provisions has mushroomed over the last decade. Now, over half the non-union U.S. employees are subject to such clauses. In a series of cases, the U.S. Supreme Court has upheld employers’ rights to impose arbitration requirements, finding that federal law forbids states to limit them. Given these holdings, a change in the law at the federal level is required to restrict employers’ use of arbitration provisions to keep women claiming sexual harassment out of court.

Now, California Senator Kamala Harris is one of several sponsors of a bipartisan bill the federal level that aims to end sexual harassment secrecy another way – by forbidding terms of employment contracts that require confidential arbitration, rather than an open lawsuit, for sexual harassment claims. The bill is co-authored by Rep. Cheri Bustos (D – Ill.) and Sen. Kirsten Gillibrand (D – N.Y.). According to Marina Fang’s reporting, the “Senate bill is also backed by Sens. Lindsey Graham (R – S.C.), Lisa Murkowski (R – Alaska)” and the “House version has support from Reps. Walter Jones (R – N.C.), Elise Stefanik (R – N.Y.), and Pramila Jayapal (D Wash).”

Private Action Instead of Legal Change

And a change in the law is not always necessary to address a problem like secret settlements, if powerful corporations decide, or can be nudged, to change on their own. Microsoft recently announced that it will no longer force women alleging sexual harassment into mandatory arbitration.

Hello, and welcome to Episode 5 of my Misconception Monday series. In this series of podcasts, I identify and dispel common misconceptions that are related to the many aspects of the California legislative process.

Today we’ll move in to a topic that ties in to the news about the sexual harassment that has been going on in the Capitol, both here in Sacramento and in Washington, D.C.. The topic of today’s podcast is common misconceptions about legislative ethics.

Relevant to the ongoing conversation about sexual harassment in the Legislature are the following common misconceptions that I call out in the podcast.

One misconception is that both houses of the Legislature have adopted a formal standard of conduct for their members. In fact, only the California State Senate has adopted an official code of conduct for its members. The Assembly has not adopted one.

Another misconception is that only a court of law can remove a legislator from office. Actually, the California State Constitution, Article IV, Section 5 (a) (1) reads:

Each house of the Legislature shall judge the qualifications and elections of its Members and, by rollcall vote entered in the journal, two-thirds of the membership concurring, may expel a Member.”

So it is the members of the Legislature, and not a court of law, that can remove a member from office. You can also refer to a post by my colleague, McGeorge Professor Leslie Gielow Jacobs, on disciplining elected officials to learn about some other ways elected officials can be removed from office.

I hope you enjoy today’s post and podcast on common misconceptions related to legislative ethics.

I spoke about this issue yesterday on ABC 10 in Sacramento with Giacomo Luca.

Matt Lauer and Garrison Keillor are the most recent men terminated by their private employers because of credible allegations of sexual misconduct. Contract terms set out the ability of the media outlets to discipline these employees. But what of state and federal elected officials, who are put into office by a vote of the people and serve the citizens rather than a private employer? A constitution – again either state or federal – is what sets out the ability of a legislature, or the people, to discipline elected officials.

Article IV, Section 5 (a) (1) of the California Constitution provides that the Assembly or Senate may expel a member by a 2/3 vote, without specifying particular grounds for expulsion. Proposition 50 passed by the voters in June 2016 amended the Constitution to give both Houses the power to suspend members with or without pay, with a recitation of reasons and by a 2/3 vote. The California Constitution also provides a procedure for the voters to recall an elected official prior to the end of the official’s term. That can be done by means of a popular vote.

Article I, Section 5, of the United States Constitution provides that “Each House [of Congress] may determine the Rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member.” The Constitution does not specify grounds for expulsion but in practice the grounds have involved disloyalty to the nation or corruption. Censure is a less severe form of disciple, imposed by a majority vote of either House, which states disapproval of a member’s behavior but does not remove the official from office or limit the official’s powers. There is no federal voter recall procedure, and impeachment, available against the President, government officials, and judges, does not apply against Congress members or Senators.

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CAP⋅impact provides the information, advice and analysis you need to understand and shape the rules around you. CAP·impact is a project of the nonpartisan Capital Center for Law & Policy at McGeorge School of Law.

About this Blog

CAP⋅impact provides the information, advice, and analysis you need to understand and shape the rules around you. We provide all content for educational purposes only, and subject to our disclaimers. CAP·impact is a project of the nonpartisan Capital Center for Law & Policy at McGeorge School of Law.